The Newest Olympic Sport: Evasion of Geolocation (Guest Blog Post)

The Olympic Games can be credited for spreading awareness about and generating excitement for sports that might otherwise be unknown in various parts of the world. The global promotion of sports is one of the undeniable benefits of the Games, which are watched by millions on television and the internet all over the world. Normally it is the sports that are included in the Olympics that receive the amazing publicity and therefore the attention of viewers. However, this year the Olympic contribution might rise beyond the sports seen in London stadiums.

As an article in the Reuters U.S. edition suggested a few days ago (Olympics Fans Find Ways to Circumvent NBC’s Online Control, July 31, 2012), this year the Olympics coverage by the omnipresent NBC will contribute to the popularization in the U.S. of a sport that has not been included in the program of the Games, has not even been considered as an Olympic sport and, frankly, would probably not be accepted as a “sport” by most: evasion of geolocation.

Evasion of geolocation is primarily an expatriate sport – a sport for those who long for their home television programming and other content on the internet that can be accessed only from inside their home country. By misleading the geolocation tools that website operators have installed, expatriates travel virtually to an internet IP address in their home country to access their home television programs. Not that others don’t engage in the evasion of geolocation as well – political activists, dissidents, and others evade geolocation also; however, just as running and swimming are sports for some but life necessities for others, so too may evasion of geolocation be considered as “sport” only in certain contexts.

With its broadcasting approach to the Olympic Games, as described in the Reuters article, NBC has created unwilling virtual expatriates out of at least some U.S. Olympic fans who now have to travel virtually to appear as if they are located outside the U.S. Whether they want to watch “exotic” sports or sporting events in “real” real time, they have to find stations other than NBC to show it to them, particularly if they don’t subscribe to a cable or satellite television service. Alternative stations will be foreign stations, such as (perhaps) the BBC, and likely ones that also prevent access by internet users located outside the country or countries for which the stations hold licenses. And so U.S. sports fans are learning about ways to access foreign websites by evading geolocation and pretending to be in foreign countries.

Are the acts of users who evade geolocation and the acts of providers who supply evasion tools legal? It depends; I wrote over 90 pages explaining the intricacies of those questions in my article The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22 Fordham Intell. Prop. Media & Ent. L.J. 567 (2012) [prior blog coverage of the article]. As it could be for any questions about legality, these questions might be inconsequential if no one actually cares: unless there is a party who suffers damage, legality or illegality of acts might only be a matter for academic debate. So who cares? The BBC is gaining viewers, and with more viewers it might be able to charge more for advertising. (For a separate problem with pay-per-foreign-view, see my article.) NBC is losing viewers, which might not matter until the practice becomes widespread enough that advertisers begin to demand lower prices for advertising time on NBC. [Eric’s note: if anything, NBC has fared better financially with this year’s Olympics than it projected.] NBC’s inability to safeguard territorially limited access to third-party programs through sufficiently effective geolocation could lead to NBC’s losing licenses to programs in the future.

Those damaged by the new Olympic sport of geolocation evasion will be copyright holders who have licensed their content in a territorially limited manner. These might be music labels that have licensed music to advertising agencies for use only in the U.K. but now face the fact that U.S. users are enjoying the music in the U.S. without the labels’ consent. And, of course, no copyright holder will be unhappier about the new sport than the International Olympic Committee.

The practice of the evasion of geolocation, though it may not immediately damage IOC revenues, might in the long run necessitate a rethinking of IOC licensing strategies. Unless the legal status or technical aspects of evasion of geolocation change dramatically (meaning that it becomes illegal or technically too difficult), territorially limited licensing will be rendered ineffective, and the IOC – and, in fact, other copyright holders throughout the world – will have to create new licensing models or embark on new business models altogether.